Denise McKay v Department of Family & Community Services [2018] NSWSC 44

Supreme Court New South Wales

Medium Neutral Citation: Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Hearing dates: 13 September 2017 Decision date: 02 February 2018 Jurisdiction: Common Law Before: Button J Decision: (1) The appeal of the plaintiff to this Court is allowed. (1) The order of the NSW Industrial Commission (the Commission) dismissing the appeal of the plaintiff to the Commission is set aside. (2) The appeal of the plaintiff to the Commission is allowed. (3) The matter is remitted to the Commissioner for the making of orders pursuant to s 100D(1)(b)-(c) of the Industrial Relations Act 1996 (NSW) as the Commissioner sees fit. (4) The Industrial Relations Secretary must pay the costs of the plaintiff of the proceedings before me. Catchwords: INDUSTRIAL LAW – appeal from decision of Commissioner of Industrial Relations Commission dismissing an appeal against termination of employment of a government sector employee – appeal to Supreme Court limited to questions of law alone – whether findings of fact made by Commissioner for which no evidence – whether Commissioner failed to apply "Briginshaw standard" – whether inadvertence in one's private life to criminality constitutes "misconduct" for the purposes of s 69 of the Government Sector Employment Act 2013 (NSW)– appeal upheld – matter remitted to Industrial Relations Commission for making of ancillary orders Legislation Cited: Government Sector Employment Act 2013 (NSW), ss 50, 68, 69 Industrial Relations Act 1996 (NSW), ss 100D,197B Medical Practitioners Act 1938 (NSW), s 26 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Mathieu v Higgins & Anor [2008] QSC 209 McKay v Department of Family and Community Services [2017] NSWIRComm 1028 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Category: Principal judgment Parties: Denise McKay (Plaintiff) Secretary Department of Family and Community Services (Defendant) Representation: Counsel: A Crossland /N Nesbeth (Plaintiff) RS Warren (Defendant)